Open records settlement shines light on blacked-out government records

MADISON, Wis. – In advance of Sunshine Week, Wisconsin Watchdog and the Wisconsin Institute for Law & Liberty are pleased to announce a victory for open records and open government.

The Jefferson County Sheriff’s Department has agreed to settle an open records case by turning over unredacted copies of requested incident reports and paying WILL’s attorney fees and costs.

“Law enforcement agencies that choose to redact information like this are making a big mistake,” said Tom Kamenick, deputy counsel and open government specialist at WILL.

In July 2014, Wisconsin Watchdog made a routine open records request with the sheriff’s department seeking incident reports related to the destruction of property at a GOP booth at the Jefferson County Fair. Members of the party first made the incident public on the Vicki McKenna Show, on NewsTalk 1310 WIBA.

Germantown kindergarten teacher April Kay Smith first denied, then admitted to Jefferson County authorities she had damaged several signs at the Jefferson County Republican Party booth after the fair had shut down for the night. She told a deputy that she was “just so angry with (Gov.) Scott Walker due to the fact that she was a school teacher” because of Act 10, the Republican governor’s reforms to Wisconsin’s public employee collective bargaining law.

OPEN UP: Wisconsin Watchdog and the Wisconsin Institute for Law & Liberty have reached a settlement in an open records lawsuit involving the Jefferson County Sheriff’s Department.

The Jefferson County Sheriff’s Department would only release a redacted report, with much of the key information, including Smith’s name, blacked out. Wisconsin Watchdog eventually was able to track down much of the information from other sources.

That policy was driven by a Seventh Circuit U.S. Court of Appeals decision declaring that Palatine, Ill., police were wrong in placing a parking ticket on the windshield of a vehicle, that doing so violated the driver’s personal information. The case involved the federal Driver Privacy Protection Act. Jefferson County authorities said the DPPA required it to redact personal information from its public reports.

The federal court originally said placing the ticket on the windshield was a “disclosure,” but after remand and another appeal found that an exception permitted the disclosure.

WILL, a Milwaukee-based public interest law firm, on behalf of Wisconsin Watchdog, sent Jefferson County a letter advising that the sheriff’s department’s interpretation of the court decision was overly broad and the agency could risk a lawsuit if it continues to keep basic information from the public.

“There has been no case where an open records request was filled and wound up making liable the people who filled it,” Kamenick said at the time.

Last year, WILL and Wisconsin Watchdog challenged those redactions in court, filing an open records lawsuit demanding release of unredacted copies of the records. The case was stayed pending resolution of New Richmond News v. City of New Richmond, a case raising the same issue before the Wisconsin Supreme Court.

The court split 3-3 and remanded the case back to the court of appeals for consideration. The Jefferson County Sheriff’s Department subsequently agreed to settle the Wisconsin Watchdog case but admitted no wrongdoing.

Kamenick said the settlement should be a wake-up call for government agencies that use that interpretation of the federal law to block public information.

“The DPPA contains an exemption for government agencies carrying out their functions, and providing open access to records is a function of every government agency,” the attorney said.

Wisconsin Watchdog is pleased with the settlement, particularly because it comes just days before Sunshine Week, a national initiative to promote a dialogue about the importance of open government and freedom of information. It is a First Amendment victory not only for journalists and news organizations but everyday citizens who have the right to open records and open governments.

M.D. Kittle is bureau chief of Wisconsin Watchdog and First Amendment Reporter for Watchdog.org. Kittle is a 25-year veteran of print, broadcast and online media. He is the recipient of several awards for journalism excellence from The Associated Press, Inland Press, the Wisconsin Broadcasters Association, and others. Kittle's extensive series on Wisconsin's unconstitutional John Doe investigations was the basis of a 2014 documentary on Glenn Beck's TheBlaze. His work has been featured in Town Hall, Fox News, NewsMax, and other national publications, and his reporting has been cited by news outlets nationwide. Kittle is a fill-in talk show host on the Jay Weber Show and the Vicki McKenna Show in Milwaukee and Madison. Contact Kittle at [email protected]